Police don’t need unfettered right to surveil First Amendment-protected gatherings with drones

Privacy on the ground is receding more quickly than a drone speeding through the air. The Legislature should step in to protect Illinoisans.

Most recently, we’re told an effort is underway in Illinois to weaken an almost decade-old law that governs how police may use drones, which are aerial vehicles that can fly without a human pilot aboard. The proposal being pushed by law enforcement would expand the ability of police to use drones in a variety of settings, including mass gatherings that could include protests, rallies and other types of First Amendment-protected activity.

As it stands now, police cannot arbitrarily monitor protests or rallies from the sky, unless they suspect criminal activity. Even then, they need a warrant from a judge. Exceptions to the warrant requirement include when police fear a high risk of terrorism or loss of life, if they are looking for a missing person, if they are taking crime scene photos or if they are photographing traffic accidents.

It’s a good, balanced and until now, popular law, especially given Chicago’s long, checkered history of police surveillance abuse, including the notorious Red Squad, a police unit that surveilled political dissidents and others, mostly during the 1960s. But legislation is reportedly being readied to remove that warrant requirement. The Legislature should say no. Chicago, for one, already is a heavily surveilled city, and all that surveillance hasn’t made crime disappear.

Any change to the existing law, which was laboriously hammered between police and privacy groups, requires a good reason. So far, we have not heard a persuasive argument that allowing the surveillance of mass gatherings will make us safer.

Beyond the issue of police surveillance, the Legislature should step in to decide what limits need to be placed on how individuals and businesses can use drones, a job lawmakers have never gotten around to doing.

We can see why police are frustrated when they aren’t allowed to send a camera-equipped drone over a crowd, but an individual or commercial operation can. But just because lawmakers never took up the issue “is not a reason to weaken what they did about policing,” said Ed Yohnka, communications director of the ACLU of Illinois.

The issue is coming to a head nationwide because the Federal Aviation Administration is expected to rule on whether to lift the requirement that a drone operator must be in the line of sight of the drone. Eliminating that requirement would make it easier to make deliveries, inspect infrastructure and engage in other beneficial uses. But is also would make it easier for operators to fly drones with increased battery life over anyone’s house, take a peek at their backyard and even use facial recognition and license plate readers to monitor who comes and who goes.

A drone packed with a full array of sensors, such as microphones, cameras, wifi scanners and LIDAR (laser imaging, detection and ranging) can collect tons of information. Such drones could hover over private property and make recordings that can later show up on YouTube. Microphone-equipped drones could record what people say, which is illegal in Illinois but would be difficult to monitor if it is done by hard-to-spot drones.

The Legislature can’t sit back and wait for Congress to act. Drones are just part of what is changing the rules of privacy. Doorbells capture images of who is passing on the street, which can be shared with police. Automatic license plate readers track where people go. Cell phones record users’ movements. Massive data leaks of private information are common. Sometimes it feels as though the assault on privacy is virtually unlimited.

Drones can be very helpful, which makes it difficult to thread the needle on this issue. But the Legislature — which has been a leader in protecting privacy — shouldn’t turn its back on the privacy needs of Illinois residents.

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